Second Department Finds Question of Fact Raised by Plaintiff as to Departure Sufficient, Where Defendants' Expert Failed to Address Proximate Cause

In Gallen v. County of Rockland, the defendants moved for summary judgment relying, in part, on an affidavit from their expert who attested that the defendant doctor did not depart from the standard of care in his suicide-assessment of plaintiff's decedent.  The defense expert did not address proximate cause. The Second Department therefore found that, in order to defeat the defendants' motion, the plaintiff's expert needed only to address the standard of care.  The Court further found that the plaintiff's expert raised a question of as to whether the doctor's failure to obtain the decedent's medical records and inadequate suicide assessment rendered the defendant's treatment decision "something less than a professional medical determination," which mandated the denial of defendants' motion.   

First Department Holds That Contractor Had No Duty to Warn City of Dangerous Condition Unrelated to Contractor's Work

In Trawally v. City of New York, Welsbach Electrical Corp. was under an obligation to maintain the City's traffic signals.  Power Optech was under an obligation to maintain the City's streetlights. Although Welsbach had apparently worked on a traffic signal attached to a "leaning streetlight," the First Department held that Welsbach did not owe a duty to warn either the City or Power Optech of the condition of the streetlight, "as it was unrelated to the work for which [Welsbach] had contracted."

First Department Upholds Excess Insurer's Late Notice Disclaimer

In Martin Assoc. Inc. v. Illinois National Ins. Co., Martin had disclosed information to his attorneys and insurance broker which suggested a reasonable possibility that Martin's excess insurance might be implicated in an underlying personal injury action. Martin failed, however, to provide this information to Illinois National, Martin's excess insurer. Illinois National disclaimed coverage 26 days after Martin finally provided notice.  The First Department found that the disclaimer was timely as a matter of law, and also that Martin could not rely on notice provided by his co-defendants in the underlying action because, at all times, Martin's interests were adverse to the co-defendants.

First Department Finds That Worker Was A Labor Law "Employee" Although His Employer Was Not Paid For Work

In Lopez v. La Fonda Boricua, Inc., the First Department found that the injured plaintiff was an "employee" within the meaning of Labor Law § 240(1) despite the fact that his employer had agreed to perform work at the defendant-restaurant gratuitously.

Second Department Affirms Dismissal of Section 240(1) Claim Upon Finding Plaintiff Misused the Ladder From Which He Fell

In Scofield v. Avante Contracting Corp., the plaintiff was performing HVAC work from a 6-foot A-frame ladder.  He reached an area where stacks of sheetrock prevented him from placing the ladder directly beneath his work.  As such, plaintiff climbed to the third rung and leaned over to reach 3 to 4 feet to his right.  As he was performing his work, the ladder toppled over and plaintiff fell and was injured.  The Second Department affirmed dismissal of plaintiff's Labor Law § 240(1) claim upon a finding that plaintiff had improperly positioned and misused the ladder, which was the sole proximate cause of his injuries.  

Second Department Affirms Granting of Mistrial Over Plaintiff's Repeated References to Lack of Medical Insurance

In Peters v. Wallis, the trial court granted a motion to set aside a jury verdict against the defendant as contrary to the weight of the evidence, declared a mistrial and directed a new trial on the issue of liability.  On appeal, the Second Department modified to deny the motion setting aside the jury verdict, but the Court affirmed the mistrial on the finding that plaintiff's repeated references to her lack of medical insurance at the time of the accident may have influenced the jury. 

Second Department Finds Question of Fact as to Whether Plaintiff Was "Permitted to Work" Within the Meaning of the Labor Law

In Aslam v. Neighborhood Partnership Hous. Dev. Fund, the plaintiff was injured in a fall from a scaffold.  The plaintiff testified that he had received permission from his employer to work on the building, but the defendants owner and general contractor argued that plaintiff was expressly prohibited from working on the building.  The Second Department found that defendants had raised a question of fact as to whether plaintiff was "permitted or suffered to work" on the building, a requirement for the Labor Law to apply.